Gujarat High Court
Sureshbhai Maganbhai Vasiya vs State Of Gujarat & 5 on 9 February, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/745/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 745 of 2016
==========================================================
SURESHBHAI MAGANBHAI VASIYA, HUSBAND OF DECEASED MADHIBEN LALJIBHAI
SANGADA....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
==========================================================
Appearance:
MR MA PAREKH, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/02/2016
ORAL ORDER
1. By this writ-application under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-
"(A) Your Lordship/s be pleased to admit/allow the present writ petition, in the interest of justice;
(B) Be pleased to quash & set aside the impugned order at Ann. A, forthwith, in the interest of justice;
(C) Be pleased to declare null & void the Letter dated 7.11.2015 issued by the Resp. No.3, herein, in the interest of justice;
(D) Be pleased to issue a writ of mandamus or a writ of certiorari or any appropriate writ, order or direction and directing to the respondent no.1 to 4 to implement the Govt. Resolution DTD. 5.7.2011, forthwith, in case of the petitioner Husband of Deceased Madhuben Vasiya, forthwith, in the interest of justice.
(E) Pending, admission and final disposal of the present petition this Hon Court may be pleased to grant prayer in terms of paragraph 8(D), in the interest of justice;
(F) Any other and further relief/s may kindly be granted in the interest of justice."
2. The facts of this case may be summarized as udner:-
Page 1 of 14HC-NIC Page 1 of 14 Created On Thu Feb 11 00:16:45 IST 2016 C/SCA/745/2016 ORDER
3. The wife of the petitioner was appointed as a Cook i.e. class IV employee in the respondent No.4-Ashramshala vide order dated 1st August, 1998. She was appointed in the regular pay scale. On 24th November, 1999 the appointment was approved. The Ashramshala i.e. the respondent No.4 is a 100% Grant-in-Aid institution. The wife passed away on 27th October 2010, leaving behind the husband i.e. the petitioner and a son. The husband is before me praying for an appropriate writ or direction that on the demise of his wife, the State Government should pay a lump-sum amount by way of compensation to the family in terms of the Government Resolution dated 5th July, 2011 (Annexure 'B' to this Petition).
4. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to any lump-sum compensation from the State Government in view of the Government Resolution dated 5th July, 2011.
5. Before I proceed to answer to this question, it would be appropriate to look into the Resolution which reads as under:-
"Payment of Lump-sum
Financial Assistance to the
dependent family of
Class III and Class IV
employees who die while in
service - regarding.
Government of Gujarat,
General Administration Department,
Resolution No. Raham/102009/1651/K
Sachivalaya, Gandhinagar
Dated 5/7/2011
Read:-
Page 2 of 14
HC-NIC Page 2 of 14 Created On Thu Feb 11 00:16:45 IST 2016
C/SCA/745/2016 ORDER
(1) Govt. Resolution, General Administration Deptt. No.
Bharat/2197/K, dated 10/03/2000.
(2) Govt. Resolution, General Administration Deptt. No. Bharat/1201/910(2)/K, dated 7/9/2002.
(3) Govt. Resolution, General Administration Deptt. No. Bharat/1201/910(3)/K, dated 7/9/2002.
(4) Govt. Resolution, G.A.D. No. Bharat/102004/385/K, dated 15/06/2004.
(5)Govt. Resolution, G.A.D. No. Bharat/102004/385/K, dated 30/09/2004.
RESOLUTION Vide Government Resolution, General Administration Department dated 10.03.2000 referred to at Sr. No.(1) above, the revised scheme of giving compassionate appointment to a member of the dependent family of those Class-III and Class-IV employees who die in harness, has been pronounced. Thereafter certain amendments have been made in the scheme vide other Government Resolution referred to above.
2. Taking into consideration the provisions of the existing scheme of giving compassionate appointment to the dependent of the deceased employees who die while in service, the difficulties being experienced while implementing these provisions, the court cases filed in the wake of rejection of compassionate appointment, the report for introducing a scheme of paying limp-sum financial package in lieu of compassionate appointment to the dependent of the deceased employees, submitted earlier by the committee chaired by Smt. Nethra Shenoy, the then Principal Secretary (Planning), General Administration Department, constituted for reviewing the existing scheme of compassionate appointment and also the representation now submitted by "The Gujarat State Employees' Co-ordination Committee" and "The Gujarat Sachivalaya Federation" to provide lump-sum financial assistance in lieu of giving compassionate appointment to the dependent of the deceased employees, the matter of introducing a shceme of paying lump-sum financial assistance to the dependent family of such deceased employees in lieu of compassionate appointment, was under consideration of the Government for quite some time.
3. After careful consideration of this entire matter, in super session of the existing scheme of giving compassionate appointments to the members of dependent families of those Class III and Class IV employees, who die while in service, a scheme for payment of lump-sum financial assistance to such families, is hereby introduced as under:-
(1) Dependent family of Class III and Class IV employees who Page 3 of 14 HC-NIC Page 3 of 14 Created On Thu Feb 11 00:16:45 IST 2016 C/SCA/745/2016 ORDER die while in service, shall be paid lump-sum financial assistance as follows:-
Sl. The remaining period of service of the Amount of lump-
No. deceased employee sum financial
assistance
1 The period of remaining service is 20 Rs.6 lakh
years or more
2 The period of remaining service is less Rs.5 lakh
than 20 years but more than 10 or more
years
3 The period of remaining service is less Rs.4 lakh
than 10 years
(2) Lump-sum financial assistance as mentioned above shall be admissible to the dependent families of the deceased Class-III and Class-IV employees who are appointed on regular basis through the prescribed recruitment process and who have put in at least five years of service as well as to the deceased class III and Class IV employees who are on work-
charge establishment.
This scheme shall not apply to daily wage workers, casual workers, apprentices and those who are appointed on ad-hoc basis, contract or re-employment basis.
(3) The lump-sum financial assistance shall be paid only to the legitimate wife or husband or son or un-married daughter including legally adopted child under "the Hindu Adoption Act, 1956" in case of childless employee during his/her existence), who is fully dependent on the concerned employee at the time of his/her death and in whose name the family pension is admissible/has been granted.
(4) If husband and wife are both Government employees and one of them dies while in service, in that case, this assistance shall not be admissible to the family of such deceased employee.
(5) If husband/wife of the Government employee who died while in service, is serving in Government of India, Government of Gujarat or other State Government, semi- Government Institutions, Board/Corporation undertaking by the State/Central Government, Grant-in-aid Institutions, Local Self-Governing Institutions, Taluka/District Panchayat, Nationalized Banks, Co-operative Institutions (e.g.Nagrik Co- operative Banks, District Milk Producing Federations, GUJCOMASOL, Agricultural produce Marketing Committee of the State, District Central Banks etc.) and any Institutions formed under the Act of the State Government or Central Government, this assistance shall not be admissible to the family of such deceased employees.
Page 4 of 14HC-NIC Page 4 of 14 Created On Thu Feb 11 00:16:45 IST 2016 C/SCA/745/2016 ORDER
4. Sanction to pay such lump-sum financial assistance to the dependent families of the deceased Class-III and Class-IV employees shall be granted by the concerned Heads of Department. If such cases fall under Sachivalaya Department, the concerned Sachivalaya Department shall grant sanction for paying such lump-sum financial assistance.
It should be ensured that the amount of such lump-sum financial assistance is paid within three months from the date of the demise of the employee, to the person in the family pension as mentioned in para 3(3) above, by completing the procedure of sanctioning such amount at the earliest, after verifying the death certificate and other necessary documents.
5. All the pending applications of giving compassionate appointments to the members of the dependent families of such deceased Class-III and Class-IV employees shall be disposed of as per this new scheme.
6. Cases of giving compassionate appointments to the members of the dependent families of the deceased Class-III and Class-IV employees which have already been rejected, shall not be reconsidered under this scheme.
7. This scheme shall apply uniformly in the cases of the dependent families of those deceased Class III and Class IV employees serving under State services, Panchayat services and Grant-in-aid Institutions,who die while in service.
8. This issues with the concurrence of Finance Department vide the note on this department file of even number, dated 18/4/2011."
6. The Government Resolution dated 5th July, 2011 is in the form of a Policy decision. Earlier, the Policy was that if the only earning member of the family dies in harness, then with a view to provide immediate succour, the Government used to appointment any one member of the family in place of the deceased. This Policy came to be discontinued and has been substituted by the Policy, which is reflected in the Government Resolution dated 5th July, 2011.
Page 5 of 14HC-NIC Page 5 of 14 Created On Thu Feb 11 00:16:45 IST 2016 C/SCA/745/2016 ORDER
7. I am afraid the petitioner-husband cannot pray for any lump-sum compensation relying on the Government Resolution referred to above, more particularly, having regard to the contents of Clause-3 of the Resolution.
8. The husband will have to establish by leading cogent evidence before the Authority concerned that he himself, and his children, at the time of the death of the deceased, were fully dependent on the deceased employee. Ordinarily, if the husband is earning well in a private employment, or public employment, he could not be said to be fully dependent on the deceased employee at the time of the death of his wife.
9. However, the reason assigned by the State Government for rejecting the claim of the petitioner does not appear to be correct in view of the settled position of law. The reason assigned appears to be that wife being an employee of an Ashramshala, was not a Government servant, and if that be so then the Resolution is not applicable. This issue is no longer res-integra. I had an occasion to consider this issue in the case of Jivanbhai Joitaram Parmar v. State of Gujarat, Special Civil Application No.2873 of 2013, decided on 29th July, 2015 wherein this Court observed as under:-
"10. It is not in dispute that the petitioner was appointed as a Teacher in a Grant-in-Aid Ashramashala in the year 1976. The concept of the Ashramshala was introduced by the State Government with a definite object. The object of the same was to see that the children hailing in remote areas of the State are imparted education alongwith the facilities of lodging and boarding. That is the reason why the same was termed as an Ashramshala. The State Government came out with the Government Resolution, dated 23.08.1973 which provided as under:-
Page 6 of 14HC-NIC Page 6 of 14 Created On Thu Feb 11 00:16:45 IST 2016 C/SCA/745/2016 ORDER Such of the teachers employed in the Ashram Schools run by the voluntary agencies who fulfill the prescribed qualification and experience for primary teachers of the District Education Committee under the Panchayats and who were within the age prescribed for primary teachers on the day of their recruitment in the service of the Ashram Schools should be allowed to have their lien in the services of respective District Education Committee under the Panchayat and service of such teachers should count fully in the service of the District Education Committee from date of selection by the Staff Selection Committee of the respective district panchayat.
11. It appears from the reasonings assigned by the State Government that a teacher of an aided Ashramshala would not be covered or governed by the provisions of the Bombay Primary Education Act, 1947 and Rules of 1949 framed thereunder. It appears from the stance of the State Government that the Government Resolution, dated 06.04.2002 would be applicable to only those teachers of the Aided Private Primary Schools falling within the ambit of the Bombay Primary Education Act, 1947.
12. Although it is not made clear from the affidavit-in-reply filed by the State Government yet it appears that the reasonings adopted by the State Government are in tune with a Judgment rendered by a learned Single Judge in Special Civil Application No.11651 of 2004. It appears that a learned Single Judge of this Court took the view that the teachers of the Ashramshala cannot be put at par with the teachers of a Primary Aided Schools.
13. It appears that this issue is now no longer res-integra in view of a Division Bench decision of this Court rendered in the case of 'Gujarat Rajya Ashramshala Karmchari Sangh Vs. State of Gujarat & Ors.' Letters Patent Appeal No.332 of 2007, decided on 22.04.2014. I may quote the observations made by the Division Bench as under:-
1. All these matters arise out of the common judgment and order passed by the learned single Judge dated 04.02.2006 in Special Civil Applications No.11651/2004 and 13746/2005 and hence, they are decided by this common judgment.
1.1 LPA No.332/2007 has been preferred by the original petitioner of SCA No.11651/2004 against the non-grant of retiral benefits like pension, etc. to the members of the appellant-union, original petitioner.
1.2 LPA No.516/2007 & 636/2007 have been preferred by the State against the impugned judgment for partly allowing the writ petitions.
1.3 SCA No.2599/2009 has been preferred by Bhil Seva Page 7 of 14 HC-NIC Page 7 of 14 Created On Thu Feb 11 00:16:45 IST 2016 C/SCA/745/2016 ORDER Mandal, which is a Grant-in-aid Educational Institution registered under the Bombay Public Trusts Act, 1950 seeking financial assistance from the State Government for the payment of Gratuity and similar benefits to its employees.
2. The learned single Judge has elaborately discussed the facts giving rise to the present proceedings in the impugned judgment and hence, they are not repeated for the sake of brevity. However, briefly stating, the grievance of the original petitioners was that the staff of primary schools run by the District Panchayat Education Committees are being paid various benefits, including that of Government Pension, Gratuity, Group Insurance, Medical allowance, etc., whereas, the members of the petitioner-union, who are the staff of Ashram Shalas, are being denied the said benefits.
3. Mr. Kaushik Pujara learned counsel appearing with Mr. M.K. Patel for the appellant-Union drew our attention to the Government Resolution dated 21.01.1986 wherein it is resolved to confer all benefits to the staff of Ashram Shalas, as are being available to staff of primary schools run by District Panchayat Education Committees. He also drew our attention to the Government Resolution dated 25.11.1988 which provides for the pay-scales of the staff of Ashram Shalas. He took us through the Government Resolution dated 22.12.1953 issued by the erstwhile Government of Bombay whereby the scheme of Ashram Shalas was formulated. He also took us through the scheme of The Bombay Primary Education Act, 1947, the definition of approved school provided in Section2(2), definition of private primary school provided in Section2(18A) and also Section40A regarding recognition of private primary schools. He also took us through the provisions of Section18 of The Right of Children to Free and Compulsory Education Act, 2009.
3.1 It was submitted by learned counsel Mr. Pujara that the scheme of Ashram Shalas is recognized by the State Government and is also recognized under The Bombay Primary Education Act. Therefore, the staff of Ashram Shalas are entitled for all benefits, as are made available to the staff of primary schools run by the District Panchayat Education Committees. He submitted that in pursuance of the litigation filed before this Court, the State Government agreed to grant all benefits to the staff of District Panchayat Education Committees vide Resolution dated 06.04.2002. They have also been granted benefits of different Pay Commissions.
Therefore, the learned single Judge erred in not recognizing the staff of Ashram Shalas as Government Employees and in refusing to grant them all benefits.
4. Mr. Roshan Yagnik learned AGP submitted that the learned single Judge erred in granting the benefit of pay-scales to the members of appellant-Union. He submitted that the impugned order has huge financial implications upon the Page 8 of 14 HC-NIC Page 8 of 14 Created On Thu Feb 11 00:16:45 IST 2016 C/SCA/745/2016 ORDER State Exchequer and that the learned single Judge ought not to have issued such directions since it is a policy matter of the Government. He, therefore, submitted that the impugned judgment deserves to be quashed and set aside.
5. Mr. Yogi Gadhia learned counsel appearing on behalf of the petitioner-Mandal in SCA No.2599/2009 adopted the arguments advanced by learned counsel Mr. KB Pujara and submitted that the petitioner-Mandal is a 100% Grant-in-aid institution recognized by the State Government under The Bombay Primary Education Act and is imparting education, which is now compulsory under The Right of Children to Free and Compulsory Education Act, 2009.
6. We have heard learned counsel for the respective parties and have perused the documents on record. We have also gone through the impugned judgment rendered by the learned single Judge. It appears from the record that the idea of starting Ashram Shalas was conceptualized way back in the year 1953 by the erstwhile Government of Bombay. The then Government recognized the problem of lack of education amongst the inhabitants of the poor and weaker sections of the society and decided to set up schools with free lodging and boarding facilities with the object to impart intensive basic training under the constant supervision and guidance of able teachers. The activities carried out by the Ashram Shalas are at grass-root levels and that to in tribal areas. It is also granted recognition by the State Government under the provisions of Section40A of The Bombay Primary Education Act, 1947. Further, free education is also a legal right under The Right of Children to Free and Compulsory Education Act, 2009.
7. In the present day scheme of education, several private institutions, which are not getting Grants from the State Government, flourish in the urban areas. However, one cannot see such private educational institutions operating in the tribal or rural areas. Ashram Shalas are such exceptions, which also provide lodging and boarding facilities to students, who basically belong to backward strata of the society and are living in tribal areas. When the Ashram Shalas are recognized under The Bombay Primary Eduction Act and education has now become a legal right under The Right of Children to Free and Compulsory Education Act, 2009, to deprive the staff of Ashram Shalas of the benefits, as are being given to the staff of schools run by District Panchayat Education Committees, would be discriminatory and thereby, unconstitutional.
8. In our considered opinion, once the State Government granted recognition to the Ashram Shalas as approved school u/s.2(2) of The Bombay Primary Eduction Act and released necessary financial aid, it is not proper on the part of the State Government to back out from the promise made in the Page 9 of 14 HC-NIC Page 9 of 14 Created On Thu Feb 11 00:16:45 IST 2016 C/SCA/745/2016 ORDER Government Resolution dated 21.01.1986. Having said that, the staff of Ashram Shalas cannot also be placed in the category of Government Employees. Nevertheless, to deprive them the status of approved schools under The Bombay Primary Eduction Act would be unconstitutional. Hence, we are of the opinion that the learned single Judge erred in holding that Ashram Shalas are not covered under private institutions. The Ashram Shalas are covered under The Bombay Primary Eduction Act, otherwise, they could not have carried out educational activities in view of Section40A r/w. Section18 of The Right of Children to Free and Compulsory Education Act, 2009.
9. In view of the above, we hold that the staff of Ashram Shalas will be entitled for all benefits of the Government Resolution dated 21.01.1986, as are being given to the staff of primary schools run by District Panchayat Education Committees since they are carrying out educational activities under The Bombay Primary Education Act just like any other private institution. Such benefit shall be extended from the date when it was given to the staff of primary schools run by District Panchayat Education Committees. It is clarified that the above benefits will also be extended even to the Non- teaching Staff of the Ashram Shalas. The impugned judgment and order of the learned single Judge, accordingly, stands modified to the aforesaid extent. Consequently, LPA No.332/2007 and SCA No.2599/2009 are partly allowed whereas, LPA No.516/2007 and 636/2007 are dismissed.
14. Thus, the plain reading of the afore noted Judgment indicates that the Ashramshalas are covered under The Bombay Primary Eduction Act, otherwise, in absence of the same, they could not have imparted the education in view of Section-40(A) r/w. Section18 of The Right of Children to Free and Compulsory Education Act, 2009.
15. If that be so, then there is no reason for the Government to exclude the teachers like the petitioner herein from the applicability of its Government Resolution, dated 06.04.2002. The petitioner would be entitled to draw the pension for the period between 16.01.1976 and 11.08.1994 i.e. the period during which he was serving as a Teacher in a Grant-in-Aid Ashramshala. My line of reasoning is also in accordance with the Government's own resolution of the year 1973 which has been quoted and relied upon in the impugned order. The word 'Lien' in the Government Resolution, dated 23.08.1973 should be read as 'absorption'. To put it in other words, the service put in by the teacher in the Ashramshalas should be allowed to be considered while being absorbed in the service of the respective District Education Committee under the Panchayat.
16. My attention is also drawn to a Division Bench decision in the case of 'State of Gujarat Vs. Kusumben E. Borasada' Page 10 of 14 HC-NIC Page 10 of 14 Created On Thu Feb 11 00:16:45 IST 2016 C/SCA/745/2016 ORDER reported in 2001 (3) GLH 659. The issue before the Division Bench was regarding the pensionary benefits to the teachers of the Non-Government (Private and Recognized) Grant-in- Aid Primary Schools. I may quote the observations made by the Division Bench in Paragraphs-4, 5, 6, and 7, as under:-
4. Having heard learned counsel for both the sides and having given our thoughtful consideration, we find that once it is established and which emerges as an admitted position that the teachers of Non-Government recognised grant-in-
aided private colleges, higher-secondary and secondary schools are being given the pensionary benefits, what can be the justification for denying the same benefits for the teachers of the similar institutions imparting primary education. We do not find any basis to discriminate them and the reasons of financial constraints or that there was no policy decision are not at all germane to the controversy raised in this matter, and we fully agree with the reasons given by the learned Single Judge in support of his order. No discrimination can be permitted by making a class within a class. For the purpose of pension, whether the teachers are working in primary schools or in secondary, higher-secondary schools or colleges, all have to be treated at par and no discrimination can be meted out to the persons belonging to the same class. It is a clear case in which the equals have been treated in an unequal manner which strikes at the very principle of equality enshrined in Article 14 of the Constitution of India as well as Article 16 of the Constitution of India with regard to the equality of opportunity in the matters relating to employment. We, therefore, find that the grounds, on which the judgment of the learned Single Judge has been assailed, are not tenable and we have no hesitation in holding that the teachers in the Non-Government-private but recognised and aided institutions imparting primary education are also entitled to the same pensionary benefits as are admissible to the teachers of identical institutions working in the colleges, higher-secondary schools and secondary schools. The State, being a welfare State, is not supposed to make any distinction or give a differential treatment by creating a class within a class and the teachers of the private institutions imparting primary education which are recognised and aided by the Government are also entitled to pension.
5. Therefore, while upholding the order as has been passed by the learned Single Judge, we direct the State Government to frame an appropriate scheme for the purpose of giving pensionary benefits to the teachers of the primary schools of above nature. Modalities with regard to the date of commencement of the pension scheme as also the date from which the actual payment of pension is to be made in case of teachers who were already retired may be worked out.
6. In this regard, certain aspects have been brought to our notice by the learned Senior Counsel, Mr. H.M. Mehta, and Page 11 of 14 HC-NIC Page 11 of 14 Created On Thu Feb 11 00:16:45 IST 2016 C/SCA/745/2016 ORDER we find that such factors are relevant and quite germane for the purpose of evolving such a scheme for payment of pension to the teachers of Non-Government (Private) but Government recognised and Government Aided Primary Schools and we accordingly direct that while framing the scheme and determining the date of commencement of the scheme the State Government shall keep in view the following aspects and treat the teachers of such primary schools at par with the teachers of similarly situated Colleges/Higher Secondary Schools/Secondary Schools for the purpose of pension by issuing appropriate Government Resolution:-
(i) That The Employees' Provident Funds and Miscellaneous Provisions Act, 1952 [14th March 1952] was an Act to provide for the initiation of the Provident Funds (Pension Fund) and Deposit Linked Insurance Fund for employees in factories and other establishments;
(ii) That this Act was applied to the employees working in educational establishments on 19th of February 1982;
(iii) That as has been pointed out by Mr. H.M. Mehta, in case of educational institutions, the Supreme Court while admitting a batch of writ petitions filed by number of educational institutions had stayed the operation of the Government of India's Notification S.O. No. 986 dated 19th February 1982, applying the Act to Educational Institutions and the general stay continued till January, 1988, and while deciding and dismissing these petitions finally in January 1988, the Supreme Court, in the cases of M/s. D.A.V. College and anr. Vs. Regional Provident Fund Commissioner and Ors., reported in 1988 (2) S.L.R. Page 170 decided on 29.1.1988 and Welham Girls High School Society, Dehradun Vs. Union of India and Others reported in 1988 (2) S.L.R. Page 172 decided on 28.1.1988 ordered as under :-
"We do not find any substance in the contention of the petitioners in these cases that the Employees Provident Fund And Miscellaneous Provisions Act, 1952 (hereinafter referred to as `the Act') has no application to the educational institutions who are petitioners in these cases. We, therefore, dismiss these cases.
2. We direct that the petitioners shall comply with the Act and the schemes framed thereunder regularly with effect from 1.2.1988. Whatever arrears they have to pay under the Act and the schemes in respect of the period between 1.3.1982 and 1.2.1988 shall be paid in each of the petitioners within such time as may be granted by the Regional Provident Fund Commissioner. If the petitioners pay all the arrears payable from 1st March, 1982 upto 1st February, 1988 in accordance with the directions of the Regional Provident Fund Commissioner he shall not levy any damages for the delay in payment of the arrears. Having regard to the special facts of these cases the subscribers (the employees) shall not be entitled to any interest on the Page 12 of 14 HC-NIC Page 12 of 14 Created On Thu Feb 11 00:16:45 IST 2016 C/SCA/745/2016 ORDER arrears. The Writ Petitions are disposed of accordingly. No costs."
(iv) In the light of the Supreme Court's judgment as aforesaid, it may be considered that as a consequence of general stay granted by the Supreme Court of the operation of the Government of India's notification S.O.No.986 dt.19th Feb.1982 the educational institutions had not recovered the employees' share of contributions from their wages during the period (March 1982 to January 1988) when the stay order was in force and therefore in such cases insistence of the payment of the employees' share of contributions by the institutions themselves will not be in order. Therefore, it was decided by the Central Board of Trustees in consultation with the Ministry of Labour, Government of India, that in cases where the educational institutions had not actually recovered the employees' share of contributions from their wages for the period from 1.3.1982 to 31.1.1988, payment of the same need not be insisted upon and the same may be waived except in cases where the employer or the employees volunteer to pay the same in lump-sum or in installments and in cases where the employees' share of contribution for the above-said period has already been deposited by any of the educational institutions and has been credited to the respective accounts of the employees, the question of its refund does not arise and such cases should not be reopened.
(v) The date of judgment of the learned Single Judge is 18th January 1997.
7. All these factors may be taken into consideration for the purpose of fixing the date of commencement of the scheme with regard to the teachers of the private institutions imparting primary education which are recognised and aided, and in case of retired teachers, the amount of pension be fixed on notional basis from the date of the commencement of the scheme. Such scheme shall be framed by the Government within a period of three months from the date of receipt of the certified copy of this Order, as may be served by either of the parties or through the Court, and the same shall be appropriately notified, acted upon and given effect to and the due benefits shall be given to the retired teachers also who are found to be entitled for the pension. The Appeal is hereby dismissed with no order as to costs with the directions as above"
10. In such circumstances, the impugned order is quashed. The authorities shall re-consider the matter and pass a fresh order in light of the observations made above Page 13 of 14 HC-NIC Page 13 of 14 Created On Thu Feb 11 00:16:45 IST 2016 C/SCA/745/2016 ORDER provided the petitioner is able to adduce cogent and convincing evidence that he and his children, if any, were wholly dependent on the salary of the deceased employee. It will be open for the petitioner to apply afresh with necessary evidence in that regard, and if such application is filed the Authority concerned shall consider the same in accordance with law and pass appropriate order within a period of two months from the date of the receipt of the writ of the order.
11. With the above, this petition is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) Manoj Page 14 of 14 HC-NIC Page 14 of 14 Created On Thu Feb 11 00:16:45 IST 2016